Several submissions to Australia’s OHS harmonisation process were very critical of the lack of attention provided to the occupational diving industry. It seems that the Queensland Government has been listening as it has introduced into Parliament a Safety in Recreational Water Activities Bill 2011 alongside its State-version of the model Work Health and Safety Bill (WHS). The safe diving bill is an example of the additional State-level OHS legislation that the harmonisation process has always allowed for, and may pave the way for “specialist” OHS laws in other States. The Queensland process is slightly different from how the New South Wales government has approached its OHS legislation.
The bill, as outlined in Hansard, uses model WHS bill language:
“Now I turn to some of the specifics. The Safety in Recreational Water Activities Bill includes the following key elements:
- a primary duty of care requiring persons conducting a business or undertaking to, so far as is reasonably practicable, ensure the health and safety of the people for whom the activities are provided;
- a requirement for officers of companies conducting a business or undertaking to exercise ‘due diligence’ to ensure compliance with the Safety in Recreational Water Activities Bill in providing recreational water activities;
- a requirement for workers of the person conducting a business or undertaking to ensure the health and safety of people for whom recreational water activities are provided; and
- reporting requirements for ‘notifiable incidents’ such as the serious illness, injury or death of persons and dangerous incidents arising out of the business or undertaking.”
At first glance, Queensland’s WHS Bill mirrors the national model as the federal Government intended but one Australian lawyer has already identified a potentially major anomaly between the Queensland approach and that of the New South Wales government – the continuance of OHS prosecutions to be heard in an Industrial Court.
There are strong arguments for and against hearing OHS matters in a specialist Court, and not every Australian State has one. Industrial Court decisions have been an important resource for safety management lessons and for clarification of legislative obligations. Such a resource from NSW will be sorely missed and it is good to see the Queensland option continuing. However, the issue would be moot if, in the future, OHS court decisions are widely disseminated to safety and HR professionals.
As each State begins to introduce their WHS Bills, it will become increasingly important to watch the state political discussions, debates in Parliament and the localised lobbying by interest groups, as these will determine the acceptance of the new laws and, in turn, their successful application. The WHS laws are not expected to vary greatly from the model WHS Act but the politics of safety are likley to be on show.